The Peoples’ Constitution – Revolution and the Declaration of Independence

By Ben Lenhart

It has been 245 years since America declared independence. How are we doing today in living up to the goals set out in the Declaration of Independence?Thefirst part of this two-part article lastweek looked at the Constitution and the Declaration of Independence and how they relate to the idea of revolution. Approaching July 4th, this second part focuses onhow the Constitution succeeds—and sometimes fails—in carrying out the goals of the American Revolution laid out in the Declaration of Independence.

The Declaration of Independence – Made Simple

The Declaration is short (just a few pages) and can broken into four parts. The first part states the purpose of the Declaration: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another … a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”In other words, we want to explain to the world why we are having a revolution.

The second part is the heart of the document. First, it declares certain fundemental rights. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Next it explains the purpose of government. “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. … That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.”

These famous lines can be summed up: 1) all people have certain core rights; 2) governments are created by the people to protect these rights, and 3) when the government fails in that duty, the people have the right to revolt and overthrow the government. Along with the more famous rights—“life, liberty and the pursuit of happiness”—this “right to revolt” is another fundemental right contained in the Declaration.

The third part lists our grievances against England—27 in all. These are the reasons for the revolution. They range from imposing taxes on colonists without their consent and quartering troops in their homes, to cutting off trade to the colonies and depriving the colonists of a right to trial by jury.

The fourth and last part is the actual declaration itself: “We, therefore, the Representatives of the united States of America … appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States.”

Scorecard: Is the Constitution Achieving the Goals of the Declaration of Independence?

Equality. We can grade the Constitution today by measuring it against three fundamental rights set out in the Declaration: equality, liberty and democracy. At its creation in 1787 the Constitution receives a F grade for equality. Not only did the original Constitution include four references supporting slavery (although the word itself does not appear), it also lacked any statement of equal protection under law. In the 245 years since the Declaration, the Constitution has moved much closer to this goal, but still has a good way to go. Some of the key landmarks in the march toward legal equality include: the 13thAmendment (1865) banning slavery; the 14thAmendment (1868) adding a Constitutional guarantee of equal protection under law; the 15thAmendment (1870) guaranteeing the right to vote regardless of race; the 19thAmendment (1920) guaranteeing the right to vote regardless of gender;Brown v. Board of Education(1954) banning school segregation based on race; the Civil Rights Acts of 1964, banning segregation in public places andprohibiting employment discrimination on the basis of race, color, religion, sex or national origin;US. v. VMI(1996) holding that VMI’s ban on female students violated equal protection; andObergefell v. Hodges(2015) holding that a ban on same-sex marriage violated equal protection. While profound challenges still remain if we are to achieve equal protection under law, measured over the past 245 years our Constitutional system has made huge progress toward that lofty goal.

Liberty. On liberty, the Constitution gets a good grade but is still far from perfect. Americans have more liberty under law to say and do things than people in many other nations. Our freedom of speech and religion, protected by the 1stAmendment, are stronger today than in the past. In the early 1900s, many were jailed simply for advocating socialism, but the Supreme Court (in cases such asBrandenburg v. Ohioin 1969) eventually ruled that such speech is a core liberty protected by the Constitution. Most Americans today have the constitutionally guaranteed liberty to move about as they want, say what they want, believe what they want, follow any religion they want, own guns if they want, and vote as they choose. These liberties are invaluable, and yet they are often taken for granted, and dangerously so given how many around the world lack them, and how easily these liberties can be lost.

Bodily liberty—that is, not being thrown in jail without due process of law —was a major concern of the colonists. Our criminal justice system today is far improved from 1776 but still gets a mixed grade. On the one hand, criminal defendants have many important Constitutional rights, such as the 5thAmendment right to remain silent, and the 6thAmendment right to a speedy trial and the right to counsel, to name a few. On the other hand, our criminal justice system continues to produce unequal results, with some innocent people still ending up in jail, and some people receiving a harsher sentence than others who committed similar crimes.

Finally, economic liberty—having enough resources to exercise your liberties—is the subject of much debate. While room does not allow discussion here, suffice it to say that as the nation strives to improve economic opportunities for all Americans, our overall liberty can increase.

In short, even as much work remains, the Constitution fiercely protects many of our fundamental liberties, and for this we can all be thankful, and should all remain ever diligent.

Democracy. Finally, in one of its most radical features (radical at least in 1776) the Declaration states that the ultimate power lies with the people, not with a king, emperor or czar. The Declaration says that the main purpose of government is to secure the fundamental rights of the people, and when the government fails, revolution becomes an option. When Abraham Lincoln said at Gettysburg that we are “a government of the people, by the people, for the people,” he was not kidding. He was echoing the Declaration and the Constitution. Another word for power residing with the people is “democracy.” For democracy to work, the will of the people must be heard, and the main way to achieve that is through voting.

To grade our democracy, we could ask: 1) can every qualified voter cast his or her vote freely, easily, and safely, 2) are the election results tallied quickly and accurately, and 3) are the results of the election respected and followed?

Compared to many places in the world today, America would get a high score on these measurers, but compared to the ideal, a gap remains. Champions of new voting regulations argue that they stop fraud, but others argue they dangerously weaken the core right to vote, and thereby weaken democracy itself. While the Constitution has many provisions about voting, it has a glaring omission—no actual statement of a guaranteed right to vote. Many believe a Constitutional amendment should be added that guarantees the right to vote, and bans any law that violates it.

While these are important issues that remain to be addressed, many successes stand out. For example, we have had presidential elections every four years since 1789, with a peaceful transition of power every time (although this track record was imperiled in 2020,see article dated Jan. 14, 2021).This unbroken record is a strong indicator of the enduring health of our democracy.

Conclusion

If those who declared independence in 1776 came to America today, they would be surprised by many things, like iPhones, cars and airplanes. But they would smile at our freedom of speech and religion, our protections for criminal defendants, our efforts (still incomplete) to secure equal protection under law, and our elections, as messy as they still are. They would see that the main goals of Declaration, which they risked their lives to adopt in 1776, are still present in America today, imperfect and still a work in progress, but still strong and enduring after 245 years.

[Ben Lenhart is a graduate of Harvard Law School and has taught Constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.]

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